dismissed H-1B Case: International Trade

(b)(6)
DATE: 
INRE: 
PETITION: 
JUL 0 1 2015 
PETITION RECEIPT#: 
Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizensh ip and Immigr ation Services 
Administra tive Appeals Office 
20 Massach usetts Ave ., N.W., MS 2090 
Washington, DC 20529 -2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements . Please do not mail any motions directly to the AAO. 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the supporting documents, the petitioner describes itself as an importer and distributer of 
natural stone that was established in In order to employ the beneficiary in what it designates 
as an international business development director position, the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petitioner had not 
established that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory. The Director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We reviewed the record in 
its entirety before issuing our decision. . 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed . 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H-1B petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(I), defines the term "specialty occupation" as an 
occupation that requires: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)( 4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.P.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
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regulatory definition. See Defensor v. Meissner, 201 F.3d 387. To avoid this result, 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty 
occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. Proffered Position 
In the Form I-129, the petitioner indicated that it wishes to employ the beneficiary as an international 
business development director on a part-time basis (25 hours per week). In the support letter, the 
petitioner stated that the beneficiary will 
perform the following job duties in the proffered position: 
• Establish and maintain effective working relationships with clients, vendors and 
advertising and marketing representatives (10% ); 
• Write press releases, prepare information for media kits and develop and maintain 
Company internet web pages (15% ); 
• Identify potential clients, determine the best way to communicate publicity 
information and develop and implement a communication plan (15% ); 
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• Contract public relations representatives in local markets (5%); 
• Develop and maintain company's corporate image and identity, including use of 
logos and signage (10% ); 
• Respond to requests for information about employer's activities (5% ); 
• Manage communications budgets (5% ); 
• Direct activities of external agencies, establishments and departments that develop 
and implement communication strategies and information programs (15%) 
• Draft speeches for company executives and arrange interviews and other forms of 
contact (5% ); and 
• Evaluate advertising and promotion programs for compatibility with international 
public relations efforts (15% ). 
In addition, the petitioner states, "[w]e require that our International Business Development Director 
possesses a minimum of a Bachelor's Degree in Political Science and International Relations in order 
to competently perform the complex job duties." 
C. Material Finding 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. Based upon a complete review of the 
record of proceeding, we will make a preliminary finding that is material to the determination of the 
merits of this appeal. 
To ascertain the intent of a petitioner, USCIS must look to the Form I-129 and the documents filed 
in support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera . Pursuant to 8 C.F.R. 
§ 214.2(h)(9)(i), the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.P.R. § 214.2(h)(4)(iv) provides that "[a]n H-lB petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 
Thus, a crucial aspect of this matter is whether the petitioner has adequately described the duties of 
the proffered position, such that USCIS may discern the nature of the position and whether the 
position indeed requires the theoretical and practical application of a body of highly specialized 
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knowledge attained through at least a baccalaureate degree in a specific discipline. The petitioner 
has not done so here. 
Upon review, we conclude that the duties of the proffered position, as described by the petitioner, 
have been stated in generic terms that do not convey the actual tasks the beneficiary will perform on 
a day-to-day basis. That is, we note that the wording of the above duties provided by the petitioner 
for the proffered position are taken almost verbatim from the Occupational Information Network 
(O*NET) OnLine's list of duties associated with a public relations and fundraising manager position. 
This type of description may be appropriate when defining the range of duties that may be performed 
within an occupational category, but it does not adequately convey the substantive work that the 
beneficiary will perform within the petitioner's business operations and, thus, generally cannot be 
relied upon by a petitioner when discussing the duties attached to specific employment. In 
establishing a position as a specialty occupation, a petitioner must describe the specific duties and 
responsibilities to be performed by a beneficiary in the context of the petitioner's business 
operations, as well as demonstrate a legitimate need for an employee exists, and substantiate that it 
has H-lB caliber work for the beneficiary for the period of employment requested in the petition. 
The job description for the proffered position does not convey either the substantive nature of the 
work that the beneficiary would actually perform, or any particular body of highly specialized 
knowledge that would have to be theoretically and practically applied to perform the proffered 
position. The petitioner's assertion with regard to the educational requirement is conclusory and 
unpersuasive, as it is not supported by the job description or other substantive evidence. 
D. Analysis 
We now turn to the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A). As explained above, the petitioner has 
not established the nature of the proffered position and in what capacity the beneficiary will actually 
be employed within the petitioner's business operations. As the petitioner has not established the 
substantive nature of the work to be performed by the beneficiary, this precludes a finding that the 
proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A), because it is the 
substantive nature of that work that determines (1) the normal minimum educational requirement for 
the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to 
the proffered position and thus appropriate for review for a common degree requirement, under the 
first alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion 2; ( 4) the factual justification 
for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 3; 
and (5) the degree of specialization and complexity of the specific duties, which is the focus of 
criterion 4. 
Nevertheless, assuming, for the sake of argument, that the petitioner had adequately and accurately 
described the duties of the proffered position, we will now discuss the proffered position in relation 
to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into 
the particular position. 
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A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
USCIS recognizes the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses? The petitioner asserted in the Labor Condition Application (LCA) 
that the proffered position falls under the occupational category "Public Relations and Fundraising 
Managers." We reviewed the section of the Handbook regarding the occupational category "Public 
Relations and Fund ra
ising Managers," including the section entitled "How to Become a Public 
Relations or Fundraising Manager," which describes the following prepar ation for the occupation: 
Public relations and fundraising managers need at least a bachelor's degree and some 
positions may require a master's degree. Many years of related work experience are 
also necessary. 
Education 
For public relations and fundraising management positions, a bachelor's degree in 
public relations, communications, English, fundraising, or journalism is generally 
required. However , some employers prefer a master's degree , particularly in public 
relations, journalism, fundraising, or nonprofit management. 
Courses in advertising, business administration, public affairs, public speaking, and 
creative and technical writing can be helpful. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Public Relations and Fundraising Managers , available at 
http://www.bls.gov /ooh/management/public-relations-managers.htm#tab-4 (last visited June 17, 
2015). 
The Handbook does not support the assertion that a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into the occupation . 
According to the Handbook , a bachelor's degree in public relations, communications, English, 
fundraising, or journalism is generally required for public relations and fundraising management 
positions. In addition, the Handbook states that courses in advertising, business administration, 
public affairs, public speaking, and creative and technical writing are helpful for these positions. 
The courses that the Handbook indicates are generally required and helpful are in a variety of fields. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's of higher degree in more than one specialty is recognized as satisfying the "degree in 
2 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the 
referenced occupational category are hereby incorporated into the record of proceeding. 
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the specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a 
case, the required "body of highly specialized knowledge" would essentially be the same. Since 
there must be a close correlation between the required 
11
body of highly specialized knowledge" and 
the position, however, a minimum entry requirement of a degree in disparate fields, such as English 
and fundraising, would not meet the statutory requirement that the degree be "in the specific 
specialty (or its equivalent)," unless the petitioner establishes how each field is directly related to the 
duties and responsibilities of the particular position such that the required body of highly specialized 
knowledge is essentially an amalgamation of these different specialties. Section 214(i)(l)(B) of the 
Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty, 11 we 
do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l)(B) of the Act; 8 C.P.R.§ 214.2(h)(4)(ii). As just stated, this 
also includes even seeming! y disparate specialties provided the evidence of record establishes how 
each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
Here, the Handbook indicates that "a bachelor's degree in public relations, communications, English, 
fundraising, or journalism is generally required" for public relations and fundraising management 
positions. Thus, courses of study in a wide-range of disparate fields are considered relevant for entry 
into the occupation. (Notably, a degree in political science and/or international relations is not listed 
in the Handbook as an acceptable field of study for these positions.) These dissimilar courses of 
study do not delineate a specific specialty. Thus, the Handbook does not support the claim that the 
occupational category of public relations and fundraising managers is one for which normally the 
minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its 
equivalent. Even if it did, the record lacks sufficient evidence to support a finding that the particular 
position proffered here, an entry-level public relations and fundraising manager position (as 
indicated on the LCA), would normally have such a minimum, specialty degree requirement, or its 
equivalent. 
In response to the Director's RFE, the petitioner submitted a copy of the O*NET OnLine Summary 
Report for the occupational category "Public Relations and Fundraising Managers" to support the 
assertion that the proffered position qualifies as a specialty occupation. We reviewed the Summary 
Report in its entirety. However, upon review of the Summary Report, we find that it is insufficient 
to establish that the position qualifies as a specialty occupation normally requiring at least a 
bachelor's degree in a specific specialty, or its equivalent. The Summary Report for public relations 
and fundraising managers has a designation of Job Zone 4. This indicates that a position requires 
considerable preparation. It does not, however, demonstrate that a bachelor's degree in any specific 
specialty is required, and does not, therefore, demonstrate that a position so designated is in a 
specialty occupation as defined in section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). The 
O*NET OnLine Help Center provides a discussion of the Job Zone 4 designation and explains that 
this zone signifies only that most, but not all of the occupations within it, require a bachelor's degree. 
See O*NET OnLine Help Center at http://www.onetonline.org/help/online/zones. Further, the Help 
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Center discussion confirms that a designation of Job Zone 4 does not indicate any requirements for 
particular majors or academic concentrations. Therefore, despite the petitioner's assertion to the 
contrary, the O*NET Summary Report is not probative evidence that the proffered position qualifies 
as a specialty occupation. 
In addition, the petitioner submitted an opinion letter from Senior Vocational 
Analyst at . The letter is dated July 29, 2014. We 
reviewed the opinion 
letter in its entirety; however, the letter from Mr. is not persuasive in 
establishing the proffered position qualifies as a specialty occupation position. It does not constitute 
probative evidence of the proffered position satisfying any criterion described at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
As a preliminary matter, Mr. _ conclusion that the duties of the proffered position "need to 
be performed by an individual who has earned a Baccalaureate Degree preferably in International 
Relations or Public Relations" is inadequate to establish that the proposed position qualifies as a 
specialty occupation. Obviously, a preference for a degree in international relations or public 
relations is not an indication of a requirement of a degree in one of these disciplines. 
Further, Mr. has not adequately established his expertise to render the opinion made in this 
matter. He did not submit his curriculum vitae, nor did he provide any information regarding his 
professional and academic credentials (aside from the signature line on the letter). Mr. does 
not claim that he possesses any specific knowledge of the educational requirements for international 
business development director positions (or parallel positions) in the petitioner's industry for similar 
organizations based upon actual research or any particular authoritative sources (e.g., statistical 
surveys, authoritative industry or government publications, or professional studies). 3 Mr. 
opinion letter does not cite specific instances in which his past opinions have been accepted or 
recognized as authoritative on this particular issue. 
In addition, Mr. does not discuss the duties of the proffered position in any substantive 
detail. To the contrary, he simply listed a few tasks in bullet-point fashion with no further 
discussion. As a result, it is not evident that he analyzed the duties prior to formulating his letter. 
Furthermore, there is no indication that Mr. possesses any knowledge of the petitioner's 
proffered position beyond these duties. The fact that he attributes a degree requirement to such a 
generalized treatment of the proffered position undermines the credibility of his opinion. Mr. 
_ does not demonstrate or assert in-depth knowledge of the petitioner's specific business. 
operations or how the duties of the position would actually be performed in the context of the 
petitioner's business enterprise. 
3 In his opinion letter, Mr. references the Handbook and the O*NET in support of his assertion that 
the proffered position is a specialty occupation. However, as previously discussed, the Handbook and the 
O*NET do not indicate that the proffered position requires a bachelor's degree in a specific specialty, or its 
equivalent. 
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Moreover, it must be noted that there is no indication that the petitioner advised Mr. that the 
petitioner characterized the proffered position as a low, entry-level position relative to others within 
the occupation (as indicated by the wage-level on the LCA).4 We consider this a significant 
omission, as it appears that Mr. would have found this information relevant for his opinion 
letter. Moreover, without this information, the petitioner has not demonstrated that Mr. 
possessed the requisite information necessary to adequately assess the nature of the petitioner's 
position and appropriately determine similar positions based upon job duties and responsibilities. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(I). 
The degree requirem ent is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular 
position is so complex or unique that it can be performed only by an 
individual with a degree in a specific specialty, or its equivalent 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
4 The "Prevailing Wage Determination Policy Guidance" issued by DOL provides a description of the wage 
levels. A Level I wage rate is described by DOL as follows: 
Level I ( entry) wage rates are assigned to job offers for beginning level employees who have 
only a b asic understanding of the occupation. These employe es perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiariz ation with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes . These employees work 
under close supervision and receiv e specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www .foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
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In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent , authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
We acknowledge that the record of proceeding contains a letter from Mr. However, as 
previously discussed in detail, we find that the letter does not merit probative weight towards 
satisfying any criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A) or establishing the proffered position as a 
specialty occupation. 
The petitioner submitted copies of two job advertisements in support of the assertion that the degree 
requirement is common to the petitioner's industry in parallel positions among similar organizations. 
However , upon review of the documents, we find that the petitioner 's reliance on the job 
announcements is misplaced. 
In the Form I-129, the petitioner stated that it is an importer and distributer of natural stone with 28 
employees. The petitioner also reported its gross annual income as $1.3 million and its net annual 
income as $100,634. The petitioner designated its business operations under the North American 
Industry Classification System (NAICS) code 444190. 5 This NAICS code is designated for "Other 
Building Material Dealers." The U.S. Department of Commerce, Census Bureau website describes 
this NAICS code by stating the following: 
This industry comprises establishments (except those known as home centers, paint 
and wallpaper stores, and hardware stores) primarily engaged in retailing specialized 
lines of new building materials, such as lumber, fencing, glass, doors, plumbing 
fixtures and supplies, electrical supplies , prefabricated buildings and kits, and kitchen 
and bath cabinets and countertops to be installed. · 
5 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there . See 
http://www.census.gov/eos/www/naics/ (last visited June 17, 2015). 
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U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 444190 - Other Building 
Material Dealers , available at http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited June 
17, 2015). 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
petitioner. 
We will briefly note that, without more, the job postings do not appear to be from organizations 
similar to the petitioner. 6 When determining whether the petitioner and the organization share the 
same general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). It is not sufficient for the petitioner 
to claim that an organization is similar and in the same industry without providing a legitimate basis 
for such an assertion. Going on record without supporting documentary evidence 'is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
Further, the advertisements do not appear to be for parallel positions. For example, the posting by 
and states that the position requires a degree and a minimum of 8 years of international 
business development and sales experience. In addition, the advertisement for 
requires a degree and 2 to 5 years of experience. The petitioner designated its proffered position as a 
wage level I (entry level) on the LCA. 7 The advertised positions appear to be for more senior 
6 The postings include the following: (1) a company in the fashion industry; and (2) a company in the 
audience response industry. It does not appear that the advertisements are from companies primarily engaged 
in importing and distributing natural stone. 
7 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
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(b)(6)
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positiOns than the proffered position. More importantly, the petitiOner has not sufficiently 
established that the primary duties and responsibilities of the advertised positions are parallel to the 
proffered position. 
Moreover, the postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required. 8 For instance, the postings state that a degree is necessary, 
but they do not state that a specific specialty is required. Thus, the job postings suggest, at best, that 
a bachelor's degree is sometimes required for international business development director positions, 
but not at least a bachelor's degree in a specific specialty (or its equivalent). 9 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 10 That is, not every deficit of every job posting has been addressed. 
Thus, based upon a complete review of the record, the petitioner has not established that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the petitioner's industry in positions that are (1) in the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. For the 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
8 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1B program is 
not just a bachelor's or higher degree, but a degree in a specific specialty that is directly related to the duties of 
the position. See section 214(i)(1)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
9 It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, 
or its equivalent, is common to the industry in parallel positions among similar organizations (which they do 
not), the petitioner does not demonstrate what inferences, if any, can be drawn from two advertisements with 
regard to determining the common educational requirements for entry into parallel positions in similar 
organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
10 The petitioner did not provide any independent evidence of how representative the job postings are of the 
particular advertising employers' recruiting history for the type of job advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 
(b)(6)
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reasons discussed above, the petitioner has not satisfied the first alternative prong of 8 C.P.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. Upon review, we conclude 
that the petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of 
the proffered position. For instance, the petitioner did not submit information relevant to a detailed 
course of study leading to a specialty degree and did not establish how such a curriculum is 
necessary to perform the duties it may believe are so complex and unique. While a few related 
courses may be beneficial in performing certain duties of the position, the petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. The description of the duties does not specifically identify any tasks that are so complex or 
unique that only a specifically degreed individual could perform them. The record does not establish 
which of the duties, if any, of the proffered position would be so complex or unique as to be 
distinguishable from those of similar but non-degreed or non-specialty degreed employment. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. As previously mentioned, the wage-level of the proffered position indicates that 
(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that he will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that he will be closely supervised and his work 
closely monitored and reviewed for accuracy; and that he will receive specific instructions on 
required tasks and expected results. 
Without further evidence, it is not credible that the petitioner's proffered position is complex or 
unique as such a position falling under this occupational category would likely be classified at a 
higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. 11 For example, a Level IV (fully competent) position is 
11 The issue here is that the petitioner's designation of this position as a Level I, entry-level position 
undermines its claim that the position is particularly complex, specialized, or unique compared to other 
positions within the same occupation. Nevertheless, it is important to note that a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation 
would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not 
(b)(6)
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Page 15 
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems." 12 The evidence of record does not establish that this position is 
significantly different from other positions in the occupational category such that it refutes the 
Handbook's information that a bachelor's degree in a specific specialty, or its equivalent, is not 
required for the proffered position. 
The petitioner claims that the beneficiary is well qualified for the position, and references his 
qualifications . However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The petitioner has not satisfied the second 
alternative prong of 8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a degree in a specific specialty, or its equivalent, 
for the position 
The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 P.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-lB visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a 
position's wage level designation may be a consideration but is not a substitute for a determination of whether 
a proffered position meets the requirements of section 214(i)(l) of the Act. 
12 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & 
Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 
Nov. 2009), available at http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 
2009.pdf. 
(b)(6)
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Page 16 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See section 214(i)(l) of the Act; 8 C.P.R. 
§ 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion , the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge , and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. To interpret 
the regulations any other way would lead to absurd results: if users were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
In response to the RFE, the petitioner states that the proffered position is a new position. Upon 
review of the record of proceeding, the petitioner has not established a prior history of recruiting and 
hiring for the proffered position only persons with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
The petitioner has not provided probative evidence to establish that it normally requires at least a 
bachelor's degree in a specific specialty , or its equivalent, for the proffered position. Thus, the 
petitioner has not satisfied the third criterion of 8 C.P.R. § 214.2(h)( 4)(iii)(A). 
The nature of the specific duties is so specialized and complex that knowledge required to 
perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree in a specific 
specialty, or its equivalent 
The fourth criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. We reviewed the petitioner's statements regarding the proffered position and its 
(b)(6)
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Page 17 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position , and the designation of the proffered position in the LCA as a Level I position (of the lowest 
of four assignable wage-levels) relative to others within the occupational category. Without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence , the petitioner's has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position would likely be classified at a higher-level, such as 
a Level III (experienced) or Level IV (fully competent) position, requiring a substantially higher 
prevailing wage .13 
Again, we acknowledge that the record of proceeding contains an opinion letter from Mr. 
However, we find that the opinion letter does not merit probative weight towards satisfying any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) or establishing the proffered position as a specialty 
occupation. 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations at 8 C.F.R. § 214.2(h)( 4)(iii)(A)( 4). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation . The appeal will be dismissed and the 
petition denied. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.14 
ORDER: The appeal is dismissed. 
13 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who 
"use advanced skills and diversified knowledge to solve unusual and complex problems" and requires a 
significantly higher wage. 
14 As the identified ground for denial is dispositive of the petitioner's continued eligibility, we need not 
address any additional issues in the record of proceeding.